Could social media derail your criminal defense?

The credibility of a defendant can be important when prosecutors decide how to build their case. Unfortunately, social media posts may end up doing harm.

Criminal suspects or defendants in New York state should be careful when it comes to their social media use. For example, authorities can use Facebook posts or status updates to dispel a claim or to argue that a situation is not what it seems.

Pictures contradicting words

In the case of a weapons charge, say that the defendant claims to not have even touched a gun in the past five years. What happens when investigators dig up a Facebook photo dated from a few months ago that shows the defendant grinning as he or she handles a gun? At the very least, the photo casts doubt on the defendant's credibility. If it is only that one instance, it is possible that the defendant could state plausibly that he or she forgot about that instance.

However, there might be more photos or status updates talking about the gun. As New York State Supreme Court Judge Michael Corriero says in a video, "If that's an accurate representation of you, that's the strongest evidence of your guilt. So why would we keep it out of evidence?"

Getting account access

It is even possible that law enforcement officials are going through defendants' social media accounts without them knowing about it. In April 2017 in a disability benefits fraud case, judges ruled that a Manhattan district attorney should be able to have access to Facebook communications. Defendants in the case said they could not work due to being too sick despite later posting photos of themselves involved in jet skiing and other sports.

What defendants can do

Proactive behavior is the best strategy for criminal defendants. That is, they should refrain from posting much of anything, if anything at all, on social media. Even a seemingly innocuous post can be taken out of context or misinterpreted. This happens particularly when there are cultural differences and with jokes. For example, someone could have made a joke about drinking like a fish when, in reality, he or she was barely drinking. Still, that joke looks bad if a DWI arrest happened later that night. Defendants should try to avoid being photographed in sensitive situations. Even if they are in the background of a blurry photo, that photo could come to the attention of authorities somehow.

If a defendant in New York state thinks there may be something incriminating on social media, either on his or her own account or someone else's, it is always a good idea to tell the defense attorney. Such a disclosure helps the attorney evaluate the potential damage and better prepare to minimize the impact of these posts if they are brought up in court.